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Selecting the right damages expert witness for your case

Oct 28, 2018
Risk consulting Financial consulting

The right damages expert witness can make or break a case. Knowing how to identify and vet a potential expert is key to obtaining a successful outcome.

Choosing the right expert for the litigation matter goes beyond just checking that the person has the right credentials to be qualified as an expert on financial damages. Equally important is the expert’s ability to connect with your judge or jury, and guide them to a proper understanding of how the available data and other information, when assessed and analyzed, helps support your client’s position.

Most experts are found by inquiry and referral from one attorney to another, sometimes in the same firm or through professional connections. However, when the expert needed is someone with a very specific skill set or the inquiries have not resulted in identification of the right expert, firms may instead assign a junior attorney or an experienced paralegal to research potential experts.

It is critical for the supervising attorney to know exactly what skills their desired experts should have: a forensic accountant who is familiar with franchise agreements; a certified public accountant who has done actuarial work in both the public sector and the hospitality industry; or a former Securities and Exchange Commission investigator who has taught forensic accounting.

In addition to the right credentials, the chosen expert should be able to communicate in a clear and articulate manner.  They should come across as knowledgeable, accessible and self-assured but not condescending. The ability to build rapport with a jury is important; and when both sides present a strong, technically sound expert testimony, the jury may lean toward the one that is more personally likable. The lawyer also needs to know what soft skills the chosen expert should have: do you need a grandfatherly type; a cut and dry, technical expert whose recitation of findings comes across as simple, indisputable fact; a professorial type whose ability to connect with his or her students translates well in teaching the jury?

An expert must also be polished and unflappable in the face of tough, sometimes seemingly below-the-belt questions from opposing counsel. While there used to be an air of respect granted to expert witnesses, opposing counsel these days are much more likely to attempt to impeach an expert using a Daubert challenge. It’s critical for the attorney to have an upfront conversation with the expert to ensure they are of good character; have worked for both plaintiff and defendant; learned of any positions they may have taken that are adverse to the position taken in this case, whether through testimony or through publications of an article; and whether they have been Dauberted.  

An expert with experience testifying in a courtroom or providing deposition testimony is best positioned to have a clear picture of the moving parts of a case. This gives them an advantage, as they understand the mechanics of how cases and depositions work, and they are experienced in predicting the types of questions opposing counsel might ask, and helping the hiring attorney understand the key components of the expert’s opinion.

For all these reasons, it is important to involve the expert as early as possible. Early collaboration provides an opportunity for the expert and the attorney to discuss strategy. Engage the expert in time to assist in formulating requests for discovery. A well-versed damages expert knows best the information needed to ensure a thorough and supportable analysis. Don’t hamstring your expert out of the gate by failing to request something that they’re going to need because you didn’t know to ask for it. The sooner the expert is engaged, the sooner he or she can begin the analysis and preparation process.

In addition to all these benefits, early engagement of your expert allows time to think through the issues of the case and develop ideas behind the approach in a more cost-effective manner.

In the event that the expert finds they simply cannot support your case based on the evidence, knowing this early will allow you time to find a different expert. Remember, unlike attorneys who are advocates for their clients, the expert should be neutral.  Their professionalism on the stand helps build their reputation as a neutral and fair expert. The attorney needs to know the limits of what the expert can opine on based on the evidence.

When you work with your expert during the case preparation, be prepared to answer their questions.

  • Do you prefer phone calls to emails?  
  • Do you want a report or just schedules?  
  • Do you object frequently in depositions? 
  • What can you tell your expert about opposing counsel’s style? 
  • Will the deposition be videotaped? 
  • What is the atmosphere in the courtroom?  Is the jury engaged?

An experienced damages expert will be familiar with recent case law in the subject area, as well as best practices, industry standards and ethical considerations. A good expert understands their role and can be the lynchpin of your case if you choose the right one and make the best use of their knowledge, experience and credentials.

RSM contributors

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